Unsolicited PPP proposals in Zambia under the PPP Act, 2023

The law

The Public-Private Partnership Act, 2023 received assent on 22 December 2023. It repeals and replaces the Public-Private Partnership Act, 2009 ¹. The National Assembly listed it as the Public-Private Partnership Bill, 2023 in the Second Session of the Thirteenth Assembly ³.

The Public-Private Partnership Act (Commencement) Order, 2024, Statutory Instrument No. 16 of 2024, was made on 25 January 2024. It brought the Act into force on its date of publication, 2 February 2024 ².

The Act defines an unsolicited proposal as a proposal for a project that is initiated by the bidder ¹.

The bodies involved

• Contracting authority: receives the proposal and runs the preliminary evaluation ¹.
• Public-Private Partnership Office: continues the former PPP Unit within the ministry responsible for finance. It inspects the site, evaluates suitability and carries out due diligence ¹.
• Technical Committee: checks the proposal against the required information and refers it to the Council ¹.
• Public-Private Partnership Council: members appointed by the President and chaired by the Minister responsible for finance. It approves or rejects project proposals ¹.

Steps from submission to approval

Under section 40 a bidder submits the proposal to a contracting authority, which notifies the PPP Office. Within 14 days the authority carries out a preliminary evaluation. The proposal must be innovative, independently originated and of benefit to the public, and must contain the information listed in section 40(2) ¹.

The bidder pays a prescribed non-refundable fee into the Fund. Paying the fee creates no obligation toward the bidder. Proposals are recorded on a first come, first served basis, confidential information is protected, and a rejection is given in writing ¹.

• Within seven days the authority sends its recommendation and preliminary evaluation report to the PPP Office (section 41) ¹.
• The PPP Office inspects the project site (section 42) ¹.
• Within 14 days of the inspection the PPP Office evaluates suitability. The Technical Committee checks the proposal and refers it to the Council for preliminary approval. The Council must give reasons for a rejection (section 43) ¹.
• The authority tells the bidder the Council's decision in writing (section 44) ¹.
• The PPP Office and the authority carry out due diligence for Council approval (section 45) ¹.

Competitive bidding and restricted tenders

Under section 46 the Council directs the contracting authority to advertise for competitive proposals. Competing proposals are assessed against the original on criteria such as novelty, public benefit and the bidder's capabilities ¹.

The authority may accept the original proposal, accept a competing proposal or reject both. A preferred competing bidder goes through technical, financial and due diligence checks before the Council directs negotiations ¹.

Under section 47, with PPP Office approval, the authority may limit bidding to the proponents where several unsolicited proposals on the same matter attract high market interest or there are equally competent alternatives. Bidding conditions must stay equitable ¹.

Costs and appeals

Under section 89(2) project development costs are recoverable in full, without inflation adjustment, from the bidder that signs a PPP agreement with a contracting authority and reaches financial close ¹.

A bidder may appeal within ten working days of learning of the matter. The Council issues a written decision within ten working days of the appeal, and its decision is final ¹.